In most cases, litigants follow an informal convention relieving both sides of the obligation to include on their privilege logs any documents created after the lawsuit began. Otherwise, the privilege log would have to be updated continually-even including drafts of the privilege log itself.
As a technical matter, however, even post-lawsuit documents must be included on a privilege log. In Horton v. United States, 204 F.R.D. 670, 673 (D. Colo. 2002), the Court held that “the mere fact that a document concerning the litigation is created and exchanged between lawyer and client after the lawsuit is commenced does not mean necessarily that the document is privileged and not subject to discovery.”
Litigants will undoubtedly continue to follow the standard informal convention, but it would be wise to state somewhere in a pleading responding to a discovery request that post-lawsuit documents will not be included on the litigant’s privilege log.